Delhi High Court
Sardar Balbir Singh vs Sukhwant Kaur on 1 April, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 20th March, 2019
Pronounced on: 1st April, 2019
+ RC.REV. 320/2016 & CM APPL No.22898/2016
SARDAR MAHINDER SINGH
..... Petitioner
Through : Mr.S.P.Singh Choudhari and
Mr.Y.R. Sharma, Advocates.
versus
SUKHWANT KAUR
..... Respondent
Through : Mr.Pawan K Bahl and Mr.Bharat
Pankaj, Advocates with respondent
in person.
+ RC.REV. 321/2016 & CM APPL No.22901/2016
SARDAR BALBIR SINGH
..... Petitioner
Through : Mr.S.P.Singh Choudhari and
Mr.Y.R. Sharma, Advocates.
versus
SUKHWANT KAUR
..... Respondent
Through : Mr.Pawan K Bahl and Mr.Bharat
Pankaj, Advocates with respondent
in person.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
1. These revision petitions are filed for setting aside of the order
dated 26.10.2015 passed by the learned Rent Controller (East),
Karkardooma, Delhi whereby the applications for leave to defend of the
petitioners in both the eviction petitions were dismissed. The petitioners
are brothers and are the tenants of adjoining shops at the ground floor of
property no. IX/29, Kailash Nagar, Delhi-31.
2. The eviction petitions were filed against both the brothers under
Section 14(1)(e) of the DRC Act alleging the respondent is an
owner/landlord of the property, including these two shops admeasuring
about 9ft. x 16 ft. each situated on the ground floor. It was alleged
respondent is residing with her husband Mr.Trilok Singh in the back side
of the property on the ground floor and on the first floor. They have one
daughter who is married and lives in Gurugram and visits respondent
occasionally. The husband of the respondent got retired in the year 2005
from National Physical Laboratory, Pusa, New Delhi. The respondent
alongwith her husband wish to start cloth business in the tenanted shop as
her husband is not working since retirement and they have no reasonable
or suitable premises, besides these subject shops rented to the two
brothers viz. the petitioners. The premises is situated in the biggest
readymade cloth market of Asia in Delhi.
3. It is the case of the respondent that after getting both the shops
vacated from the petitioners herein they shall amalgamate the shops into
one big unit and would run the business of readymade garments/cloth
items with the help of workers. It is alleged such business require more
space for storage/godown too. Even the petitioners have removed the
partition wall in between these two rented shops and have amalgamated
into one unit and had fixed a single shutter in these shop but the shops are
lying vacant since 1999. It was also alleged the respondent has no other
alternative accommodation in her name to start the business as the first
floor and the terrace are purely residential.
4. The application for leave to defend was filed by the tenants viz. the
petitioners herein and they raised the following issues viz. (a) the
respondent is using the first and second floor of her property for
manufacturing of paper boxes is in the large scale; (b) the respondent had
sold the third shop in the property and had not disclosed it in the petition;
(c) the respondent would re-let the subject shop at a higher rent; (d) the
respondent's husband is a retired man getting pension and it would not be
possible for him to run a garments business as he is already running the
business of paper boxes from the two sheds on the upper floor of the
property in question; (e) the respondent had concealed she had filed a suit
in the year 2002 against the petitioner alleging he is trying to dispose of
the tenanted shop, wherein the petitioner gave a statement to the contrary
on 23.04.2003 and the said suit was dismissed as compromised; the
respondent also herein filed an eviction petition under Section 14(1)(a)
DRC Act against the petitioners herein in which the benefit under Section
14(2) was granted to the petitioner herein; she filed yet another petition
on second default which was dismissed and even an appeal against the
said order was also dismissed; she also filed a petition under Section 11
and 12 of the Contempt of Court Act; (f) she is not the landlady of the
premises and has neither obtained any probate or succession of the Will
dated 16.03.2000 of her father; it was a joint tenancy and the shops were
let out for running a partnership firm under the name and style of M/s
Royal TV Center.
5. The respondent herein filed reply to the applications for leave to
defend wherein she denied they are carrying any business of
manufacturing paper boxes and had stated the third shop alongwith the
entire back portion was sold by the respondent in the year 2002 due to
financial crisis and to meet the expenses of the marriage of their daughter
and that they would not re-let the premises, per section 19 DRC Act and
further no experience is required for running garment business and that
she owns no other property except the property in dispute. It was also
stated, the petitioners had attorned in favour of the respondent and had
started paying rent to her after the death of her father - late Sh.Kartar
Singh. The previous litigation is also not denied.
6. Let us see how the learned RC has dealt with these prepositions so
raised by the petitioners herein.
"10.1 As can be seen from the grounds taken up by
the respondent in his leave application with
supporting affidavit, the challenge to the bonafide
requirement of the petitioner has been on the
following broad grounds:- (A) That petitioner and
her husband are engaged in the business of
manufacturing of paper box from the other
portions of the property in question. (B) That the
petitioner sold one shop adjoining to the shop of
respondent in the same property in order to create
scarcity of accommodation. (C) The petitioner and
her husband have no experience in running the
business of readymade garments. (D) That there
has been a history of litigation between the parties
which is nothing but a pointer to the malafide
intention of the petitioner and her husband to evict
the respondent from the tenanted shop.
10.2 Now, taking up these grounds one by one, the
first and foremost challenge of the respondent is
that petitioner and her husband are engaged in the
business of manufacturing paper box from the
property in question. Admittedly, no document was
placed on record by the respondent to substantiate
his otherwise bald claim. A photograph was filed
to show the extent of the portions otherwise in
possession of the petitioner and her husband.
Petitioner has vehemently denied the said
allegation of the respondent by stating that neither
she nor her husband are into any such business
and that rather, husband of the petitioner retired
from the National Physical Laboratory Pusa, New
Delhi in the year 2005 and thereafter is living
without any work and dependent on his pension
income. The fact that the petitioner's husband was
in service and had retired was not disputed by the
respondent in his leave application. An issue which
the respondent tried to make out was, as already
noted, of the petitioner and her husband being
already engaged In business. The law is well
settled that if the respondent - tenant is allowed to
raise such vague pleas unsubstantiated by any
material, then the end result would be of granting
leave in almost all the cases. As has been noted,
the plea of the respondent under consideration is a
vague plea unsubstantiated by any material. As
such, there is nothing in the plea so as to make it
fall In the category of an issue meriting that. As
such, this ground as taken up by respondent holds
no water and is accordingly rejected.
10.3 The other ground as taken up by respondent
is that petitioner sold off an adjoining shop so as
to create an artificial scarcity of accommodation.
When the adjoining shop was sold and to whom it
was sold, respondent's leave application was a
complete silent. Contrary thereto, petitioner in her
reply with supporting counter affidavit
categorically stated that It was in the year 2002
that the petitioner owing to her financial crisis and
to meet the expenses on the marriage of her
daughter, was constrained to sell off the third shop
with its entire back portion. This fact of the matter
was not controverted to by the respondent except
by again a vague denial. Even otherwise, if it is
presumed that the third shop was sold off by the
petitioner, that alone in itself would not be a
ground to challenge the bonafide requirement of
the petitioner. Ld. Counsel for the petitioner
rightly relied upon the judgment cited as Anil
Kumar Verma V. Shiv Rani & Ors. (supra),
wherein Hon'ble High Court of Delhi observed
that selling of a shop by the landlord about one
year prior to the filing of eviction petition because
of financial crunch and debt reasonably justifies
the sale and is no impediment in the claim of the
tenanted premises on the grounds of bonafide
requirement. As is to be noted, in the present case
as well, petitioner sufficiently explained of the sale
of third shop by her way back in the year 2002 to
meet out expenses of the marriage of her daughter.
The present eviction petition has been filed much
later in the year 2014 and the occasion therefore
was inter alia of the retirement of the petitioner's
husband from his job in the year 2005. Thus, this
ground again as taken up by respondent raises no
triable issue and is rejected accordingly.
10.4 The other two grounds as taken up by the
respondent are concerning the lack of experience
of the petitioner and her husband in starting the
business as claimed and history of previous
litigation between the parties. So far as the lack of
experience is concerned, the law stands well
settled that petitioner or his I her dependent need
not have any experience to start the business. An
exception may be of requirement of some
professional skill depending upon the nature of
work to be started, in the present case, petitioner
along with her husband wants to start a
readymade garment business from the tenanted
shop and the adjoining shop in the possession of
other tenant, it is not in dispute that the locality
where the tenanted shop is situated is famously
known for its cloth business. The nature of
business which the petitioner wants to start along
with her husband is not such which requires any
specialized skill and as such, no past experience of
the petitioner or her husband would have any
bearing on their otherwise bonafide requirement.
10.5 So far as the previous litigation is concerned,
whereas one of the litigation was concerning the
apprehension of the petitioner of respondent
creating any third party interest in the tenanted
shop, the other two litigations were u/s. 14 (1) (a)
of the DRC Act, one of which of first default was
decided in favour of the petitioner herein. These
allegations in no manner are suggestive of any
malafide on the part of petitioner or her husband.
Again, on both these grounds, respondent fails to
raise any triable issue."
7. Qua bonafide requirement, the learned RC had noted the
respondent has denied she is not doing any business of boxes and her
husband is a pensioner. Even the sale of the third shop in the year 2002 is
not relevant in respect of an eviction petition filed in 2014, per Anil
Kumar Verma vs. Shiv Rani & Ors. 190 (2012) DLT 130; further the lack
of experience cannot come in the way to start a new business of the like
of sale of readymade garments.
8. Admittedly in the previous litigation especially in the petition
under Section 14(1)(a) of the DRC Act, the relationship of landlord and
tenant between the parties stood decided vide judgment dated 11.09.2006
and the petitioners were given the benefit under Section 14(2) of the
DRC Act. The non-disclosure of the previous eviction petitions under
Section 14(1)(e) of the DRC Act or grant of benefit under Section 14(2)
of the Act is not material enough to dislodge the claim of the respondent.
Admittedly, the respondent claims her ownership by virtue of a Will
dated 16.03.2020. It is a settled law in a petition under Section 14(1)(e)
of the DRC Act a landlord is not supposed to prove the ownership as is
required by the Transfer of Property Act.
9. Before me only two contentions are raised (a) there is concealment
on the part of the respondent as she has not disclosed the sale of the shop
in the year 2002. Admittedly the eviction petition was filed in the year
2014 hence sale of third shop in the property and that too in distress and
for genuine reasons to meet expenses incurred in the marriage of her only
daughter, would not amount to any material concealment. Per settled law
if the concealment is material only then it would be relevant to dislodge
the petition; (b) the second issue raised before me is qua her bonafide
necessity. It was argued the age of the husband of the respondent is about
73 years and at this age it cannot be expected of a person to start a new
business. I disagree with this preposition as there exists no age bar to start
any business afresh so long as a person is healthy and imaginative. The
respondent further say these shops are lying vacant since 1999 and have
shown me recent photographs of the said two shops which depict even
the shutter is broken and it do appear it has not been opened for quite
sometime.
10. It is the case of respondent she require both these shops for
readymade garments business and she require much space for storage of
the cloth and sitting space for workers etc., hence it cannot be said her
need for two shops to start her business of readymade garments is
malafide when, admittedly, the petitioner themselves had removed the
wall in between and made it a single unit.
11. In the circumstances I find no illegality or perversity in the
impugned orders passed by the learned RC and hence both the revision
petitions being devoid of merits are dismissed. Pending applications if,
any, also stands disposed of.
YOGESH KHANNA, J.
APRIL 01, 2019
DU
